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56 FLRA No. 169
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, COUNCIL OF PRISON LOCALS 33
UNITED STATES DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
December 20, 2000
Before the Authority: Donald S. Wasserman, Chairman; Dale Cabaniss and Carol Waller Pope, Members. [n1]
Decision by Chairman Wasserman for the Authority.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator John F. Caraway filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency did not file an opposition to the Union's exceptions.
The Arbitrator denied the Union's grievance, finding that employees who worked a shift beginning at 11:45 p.m. on Sunday and ending at 8 a.m. on Monday were not entitled to Sunday premium pay. For the following reasons, we conclude that the Union has failed to establish that the award is deficient under 5 C.F.R. § 550.509. Accordingly, we deny the Union's exceptions.
II. Background and Arbitrator's Award
The grievants work a regularly scheduled shift that begins at 11:45 p.m. on Sunday, ends at 8:00 a.m. on Monday, and includes 15 minutes of overtime. The Union filed a grievance contending that, because the shift begins on Sunday, employees are entitled to Sunday premium pay for the entire 8-hour shift. When the grievance was not resolved, the matter was submitted to arbitration.
The Arbitrator found that employees are entitled to Sunday premium pay for an entire shift that either begins on a Sunday or extends into a Sunday, but noted that the premium cannot be paid for overtime work performed on Sunday. Because the Arbitrator found that the 15 minutes of Sunday work performed by the grievants in this case were overtime, he concluded that the grievants were not entitled to Sunday premium pay. Accordingly, the Arbitrator denied the Union's grievance.
III. Union's Exceptions
The Union claims that the award is deficient because the Arbitrator failed to address all material issues presented in the case and because the Arbitrator misinterpreted 5 C.F.R. § 532.509 (2000). [n2] According to the Union, the 15 minutes of Sunday work at the beginning of the shift cannot be overtime because overtime is hours worked in excess of 8 hours in a day. The Union argues that an employee must "first work 8 hours" in order for any hours of work to be "in excess of 8 hours in a day." Exceptions at 2. Therefore, the Union argues that the 15 minutes of Sunday work performed by the grievants in this case is regularly scheduled, non-overtime work, that entitles them to Sunday premium pay for the entire shift.
Moreover, the Union asserts that the Agency previously paid the Sunday premium to employees working this shift, but changed its practice to consider the first 15 minutes of the shift overtime. According to the Union, this change is "in violation of [the] statute which states [that an agency] will not change a shift to avoid paying the premium pay." Id.
IV. Analysis and Conclusions
Because the Union's exception involves the award's consistency with law, the Authority will review de novo the question of law raised by the Union's exception to the Arbitrator's award. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995) (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). The Authority, in its de novo review, "assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law." United States Dep't of Defense, Dep'ts of the Army and the Air [ v56 p989 ] Force, Ala. Nat'l Guard, Northport, Ala., 55 FLRA 37, 40 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Agencies are required to establish a regularly scheduled administrative workweek for all full time employees that includes a 40-hour basic workweek and any regularly scheduled overtime work. See 5 C.F.R. §§ 610.111(a), 532.501, 550.103. Within an administrative workweek, employees are entitled to a 25 percent premium for an entire 8-hour shift when they work regularly scheduled, non-overtime hours on Sunday. See 5 C.F.R. §§ 532.509, 550.171. [n3]
In this case, the Union objects to the Arbitrator's finding that the grievants are not entitled to the Sunday premium because the first 15 minutes of their 11:45 p.m. to 8:00 a.m. shift are overtime. The Union asserts that overtime must be at the end of the shift, rather than the beginning, because it is earned for work in excess of 8 hours.
Contrary to the Union's assertion, nothing in the regulations prevents, and the Comptroller General has approved, administrative workweeks that include regular overtime work at the beginning of a shift. See John R. Vaughn, Comptroller, Defense Mapping Agency, No. B-246, 567, 1992 WL 145381, at *2-3 (Comp. Gen. June 9, 1992) (finding that an agency may schedule pre-shift overtime work). Such schedules have been approved even where they result in an employee not being entitled to Sunday pay. See Civilian Nurses - Overtime and Sunday Premium Pay Entitlement, 61 Comp. Gen. 175, 179 (1981) (finding no entitlement to Sunday premium pay where shift began with 15 minutes of overtime at 11:45 p.m. Sunday and ended at 8:00 a.m. Monday). Thus, the Union's argument that "overtime cannot be paid prior to working the regularly scheduled shift" is unsupported. Exceptions at 3.
Further, the Union does not provide any support for its assertion that a change in employee shifts to "avoid paying the premium pay" is contrary to the Statute. Id. at 2. As a general rule, agencies have discretion to set work schedules in advance of an administrative workweek. [n4] See 5 C.F.R. § 610.121.
Because the Union has not established that the Arbitrator's award is inconsistent with 5 C.F.R. § 532.509, or that the Arbitrator's finding is otherwise contrary to any law, rule, or regulation, we find no basis for concluding that the award is deficient. [n5]
The Union's exceptions are denied.
Footnote # 1 for 56 FLRA No. 169
Footnote # 2 for 56 FLRA No. 169
5 C.F.R. § 532.509 states: "A wage employee whose regular work schedule includes an 8-hour period of service which is not overtime work, a part of which is on Sunday, is entitled to additional pay under the provisions of section 5544 of title 5, United States Code."
Footnote # 3 for 56 FLRA No. 169
We note that there are two entitlements to Sunday pay in the regulations. The Arbitrator relied on § 550.171, which applies to general schedule employees, while the Union relies primarily on § 532.509, which applies to prevailing rate employees. Nothing in the record explains whether the grievants are prevailing rate or general schedule employees and neither party argues that the distinction is relevant. As there appears to be no difference in the standard applied to both groups of employees, we consider the standards identical.
Footnote # 4 for 56 FLRA No. 169
Footnote # 5 for 56 FLRA No. 169
The Union asserts that the Arbitrator erred by not addressing its claim that entitlement to overtime for work "in excess of 8 hours" requires that the overtime be computed at the end of a shift. Exceptions at 1. Because we find that the regulation at issue does not require overtime to be scheduled at the end of a shift, it is not necessary to address whether the Arbitrator erred in failing to address the regulation.